Castle v The Queen

[2016] NSWCCA 148

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Castle v R [2016] NSWCCA 148
Hearing dates:	1 March 2016
Date of orders:	03 August 2016
Decision date:	03 August 2016
Before:	Bathurst CJ at [1]; Hall J at [60]; R A Hulme J at [101]
Decision:	Appeal dismissed
Catchwords:	CRIMINAL LAW – appeal – conviction – detaining without consent with intent to obtain advantage in company, s 86 Crimes Act 1900 (NSW) – whether misdirection regarding content of recklessness – whether inadvertent recklessness satisfies mens rea for the offence of kidnapping
Legislation Cited:	Crimes Act 1900 (NSW) ss 61A, 61D, 61L, 61R, 86, 90A Criminal Damage Act 1971 (UK) s 1, 2 Malicious Damage Act 1861 (UK)
Cases Cited:	AM v R [2011] NSWCCA 237 Banditt v The Queen [2005] HCA 80; 224 CLR 262 DJB v R; R v DJB [2007] NSWCCA 209 Fitzgerald v Kennard (1995) 38 NSWLR 184 Jackson v R [2005] NSWCCA 411 O’Sullivan v R; Flanders v R; Tohu v R & NRH v R [2012] NSWCCA 45; 233 A Crim R 449 R v Caldwell [1982] AC 341 R v Crabbe [1985] HCA 22; 156 CLR 464 R v Cunningham [1957] 2 QB 396 R v Daly [1968] VR 257 R v DMC [2002] NSWCCA 513; 137 A Crim R 246 R v G [2003] UKHL 50; [2004] 1 AC 1034 R v Hemsley (1988) 36 A Crim R 334 R v Henning (Court of Criminal Appeal (NSW), 11 May 1990, unrep) R v Kitchener (1993) 29 NSWLR 696 R v Lawrence [1982] AC 510 R v Mitton [2002] NSWCCA 124; 132 A Crim R 123 R v Morgan [1976] AC 182 R v Mueller [2005] NSWCCA 47; 62 NSWLR 476 R v O’Meagher (1997) 101 A Crim R 196 R v Porteus [2003] NSWCCA 18 R v Reid [1992] 1 WLR 793 R v Stephenson [1979] QB 695 R v Tolmie (1995) 37 NSWLR 660 R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2010] NSWCCA 228 South v R [2007] NSWCCA 117
Texts Cited:	Peter Gillies, Criminal Law (4th ed 1997, LBC Information Services) David Brown et al, Criminal Laws (5th ed 2011, The Federation Press) Courtney Stanhope Kenny, Outlines of Criminal Law (1902, Cambridge University Press)
Category:	Principal judgment
Parties:	Brendan Joel Castle (Appellant) Crown (Respondent)
Representation:	Counsel: S Healy (Appellant) H Baker (Respondent) Solicitors: Australian Criminal Law Specialists Pty Ltd (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/368718
Publication restriction:	The name of the complainant is not to be published. Any material that identifies the complainant or is likely to lead to the identification of the complainant is not to be published.
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 03 March 2014 Before: Wells DCJ SC File Number(s): 2012/00368718

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 20 October 2012, a 17 year old driver (the complainant) was driving near his family home in the Kyogle area. He noticed a car on the bend and two men standing near it. The two men were Mr Brendan Castle (the appellant) and Mr Boyd. On the Crown case, one of the men walked in front of the car, causing the complainant to stop. The men indicated that they wanted the complainant to take them to Nimbin, to which the complainant replied he could not. Mr Boyd then appeared to offer the complainant drugs and the appellant was observed to be holding a bag of cannabis and a steak knife. These actions were said to instil fear in the complainant who submitted to their demands.

Along the way, they passed the property of the complainant’s uncle, who the complainant pulled over to speak with. His uncle gave evidence that the complainant looked fearful, as though he had been crying. His uncle told the men that the complainant would only drop them at a lookout partway between his property and the property where the complainant lived. The complainant drove on and when they approached the lookout, Mr Boyd was said to have grabbed the steering wheel, veering the car to the right, and told the complainant to take them to Nimbin, with which the complainant complied. There was evidence of strange comments made by Mr Boyd on the road that the complainant interpreted as a veiled threat. After dropping the men at Nimbin, the complainant was able to return home.

On the appellant’s case, the appellant was an innocent hitchhiker who was admittedly intoxicated. He alleged that the complainant had pulled over and picked them up willingly. He denied the offer of drugs and denied possessing a bag of cannabis or a knife. He gave evidence that the complainant’s uncle sanctioned the complainant driving the two men to Nimbin. He claimed to have never heard a conversation involving an alternative drop off point or seeing Mr Boyd interfere with the steering wheel.

The appellant was charged with detaining a person without the person’s consent with intent to obtain an advantage, in the company of another person, contrary to s 86(2)(a) of the Crimes Act 1900 (NSW) (the Crimes Act). At the trial, counsel for the appellant in his closing address put to the jury that what in fact occurred was a “middle ground” between innocuous hitchhiking and forced detention without the complainant’s consent with knowledge that he did not consent. He contended that the complainant may well have been scared as a young and naïve driver but that the appellant and Mr Boyd had done nothing to cause this fear, nor did they have knowledge of it.

Following the Crown’s closing submissions, the trial judge gave a direction concerning the requisite knowledge of the complainant’s lack of consent. She reiterated that the Crown case was that the appellant knew the complainant was not consenting due to the circumstances and his initial refusal. However, she said if the jury had doubt about that, they could consider whether the appellant was reckless as to consent.

Recklessness was described by the trial judge as being satisfied in one of two ways: first, “where [a person’s] state of mind was such that he simply failed to consider whether in this case [the complainant] was consenting at all and just went ahead with the act … Even though the accused … knew that there was a risk that he was not consenting and that would have been obvious to anyone with that accused person’s mental capacity if he had been bothered to think about it and turned his mind to it”; and second, where “the person realised there was a possibility in this case that [the complainant] was not consenting but went ahead anyway whether or not he was consenting”.

On the second day of her summing-up, the trial judge summarised these two definitions of recklessness again. She described the first definition as being satisfied where “each accused simply failed to consider whether or not [the complainant] was consenting and just went ahead … in circumstances generally where they should have considered that [the complainant] might not be consenting … even though the risk that he was not consenting would have been obvious to someone with each accused – considering them separately – their mental capacity if they had turned their mind to it or thought about it.” No objection was made to these directions at the time and no request for further directions was sought. The appellant was convicted.

The issue on appeal was whether the trial judge erred in directing the jury that recklessness could be satisfied for the offence of kidnapping where the applicant failed to consider whether or not the complainant was consenting to his detention in circumstances where lack of consent would have been obvious to a person with the accused’s mental capacity if he or she had considered it.

The Court held (Bathurst CJ, Hall J and R A Hulme J, each writing separately) dismissing the appeal:

Recklessness under s 86 of the Crimes Act

(i) The element of knowledge of lack of consent for an offence under s 86 of the Crimes Act can be satisfied by recklessness: [32] (Bathurst CJ); [63] (Hall J); [103], [130] (R A Hulme J).

R v DMC [2002] NSWCCA 513; 137 A Crim R 246 applied

(ii)   The question of what constitutes recklessness for the purpose of an offence will depend on the construction of the provision creating the particular offence: [33] (Bathurst CJ); [60], [93] (Hall J).

Banditt v The Queen [2005] HCA 80; 224 CLR 262 applied

(iii)   The common law presumption of the requirement of mens rea will only be displaced by clear words or necessary implication in the statute. It is the state of mind of the accused, not an objective standard, that must be considered in determining recklessness: [39] (Bathurst CJ); [63], [96] (Hall J).

(iv) Recklessness for an offence under s 86 of the Crimes Act can be satisfied by knowing disregard of an appreciated risk that the person was not consenting: [55] (Bathurst CJ); [63] (Hall J); [130] (R A Hulme J).

(v) Recklessness for an offence under s 86 of the Crimes Act can be satisfied where the accused has an intention to commit the act “willy-nilly”, not caring whether the victim consents or no: [48]-[50] (Bathurst CJ); [60] (Hall J); [130] (R A Hulme J).

Banditt v The Queen [2005] HCA 80; 224 CLR 262; R v Morgan [1976] AC 182 followed

(vi) Recklessness for an offence under s 86 of the Crimes Act is not satisfied where the accused simply fails to consider whether or not the complainant was consenting in circumstances where lack of consent would have been obvious to a person with the accused’s mental capacity if he or she had considered it: [47] (Bathurst CJ); [97] (Hall J).

Banditt v The Queen [2005] HCA 80; 224 CLR 262; R v G [2003] UKHL 50; [2004] 1 AC 1034; R v DMC [2002] NSWCCA 513; 137 A Crim R 246 applied

R v Hemsley (1988) 36 A Crim R 334; R v Henning (Court of Criminal Appeal (NSW), 11 May 1990, unrep) considered

R v Tolmie (1995) 37 NSWLR 660; R v Lawrence [1982] AC 510 distinguished

R v Caldwell [1982] AC 341; R v Reid [1992] 1 WLR 793 not followed

(vii)   (R A Hulme J in dissent): A direction regarding inadvertent recklessness does not import an objective standard; it involves a subjective standard, with an objective rider: [115]-[118]

R v O’Meagher (1997) 101 A Crim R 196 distinguished

Banditt v The Queen [2005] HCA 80; 224 CLR 262 applied

(viii) (R A Hulme J in dissent): Recklessness for an offence under s 86 of the Crimes Act, as for sexual assault offences, can be satisfied by both advertent and inadvertent recklessness: [101], [129]-[130] (R A Hulme J).

R v Tolmie (1995) 37 NSWLR 660; R v Caldwell [1982] AC 341; R v Lawrence [1982] AC 510; R v Reid [1992] 1 WLR 793; R v Kitchener (1993) 29 NSWLR 696 applied

R v G [2003] UKHL 50; [2004] 1 AC 1034 distinguished

Trial Judge’s Directions

(ix)   Taken as a whole, the direction on the first day of summing-up was not in error. Where the evidence of the appellant was that the complainant in fact consented, this direction would be taken by the jury as meaning that recklessness could be satisfied either by conscious advertence to the risk or indifference to the risk: [54] (Bathurst CJ); [98] (Hall J).

(x)   The direction on the second day of summing-up, that recklessness can be satisfied by a failure to advert to the risk, wrongly imported an objective test: [55] (Bathurst CJ); [98] (Hall J).

(xi)   (R A Hulme J): The trial judge’s directions on both the first and second day of summing-up involved clear directions as to both advertent and inadvertent recklessness: [104]-[107] (R A Hulme J).

Miscarriage of Justice

(xii)   To the extent there was error in the trial judge’s directions, such error, when taken with the whole of the evidence and the case presented by the appellant, would not have deprived the appellant of the possibility of an acquittal which was otherwise open: [56]-[57] (Bathurst CJ); [99]-[100] (Hall J); [102], [131]-[134] (R A Hulme J).

Judgment

1. BATHURST CJ: Brendan Joel Castle (the appellant), was charged on indictment with one count of detaining a person without the person’s consent with intent to obtain an advantage, in the company of another person, contrary to s 86(2)(a) of the Crimes Act 1900 (NSW) (the Crimes Act). He was also charged with one count of larceny.

2. Following a trial before a jury, the appellant was acquitted of the larceny charge but convicted of the kidnapping offence. He has appealed against that conviction essentially on the basis that the trial judge misdirected the jury that the element of the offence “with knowledge that the complainant was not consenting to the detention” could be satisfied by recklessness if the appellant and his co-accused (Mr Boyd) failed to consider whether or not the complainant was consenting to his detention. The detention involved the complainant being kept in his father’s car and forced to drive the appellant and Mr Boyd to Nimbin.

The case at trial

3. The Crown case was that on the evening of 20 October 2012, a 17 year old driver (the complainant) was driving near the family home in the Kyogle area in his father’s four wheel drive car. He noticed a car on a bend which caused him to slow down. He then noticed two men standing near the car, one of whom walked in front of his car, causing him to stop. The two men got into his car, the appellant in one of the rear seats, and Mr Boyd in the front passenger seat. The men said words to the effect that they wanted the complainant to take them to Nimbin (a distance of about 30 kms) and he replied that he could not. Mr Boyd said to him something he did not quite understand to the effect that they would give him weed, ‘shrooms, cookies or smokes. At about the same time he observed the appellant hold up a bag that he suspected contained cannabis and along with it he saw a steak knife. These things made him afraid and made him submit to the demand to drive the appellant and Mr Boyd. References, apparently made by Mr Boyd and/or the appellant, to Murwillumbah and the Gold Coast meant that he was not clear where he was driving them to.

4. Along the way, while still in the Kyogle area, he passed the property of his uncle, CS. He pulled over and spoke with his uncle. CS observed him looking fearful and like he had been crying. The men in the car said that the complainant was driving them to either Nimbin or Murwillumbah and CS responded to the effect, “He’ll do no such thing. He’ll drop you at the lookout (referring to a point part-way between CS’s property and the property where the complainant lived with his family) and I’ll come back and maybe take you further on”.

5. The complainant then drove on and as he approached the lookout with the intention of dropping them off there, as his uncle had stated, Mr Boyd in the front seat grabbed the wheel, steered the car towards the right hand side of the road and told him he had to take them to Nimbin. The complainant complied. On the road some peculiar things were said by Mr Boyd to the effect of, “Does your dad love you? Would he kill for you?”, which the complainant interpreted as some sort of veiled threat. On arrival at Nimbin, the appellant and Mr Boyd got out of the car. When the complainant first intended to drive off, Mr Boyd came back and asked him what he was doing. Ultimately, after Mr Boyd and the appellant had moved away, he informed a stranger of his predicament and asked what he should do. She advised him to drive away and he did so.

6. The appellant’s case was that the appellant was an innocent hitchhiker who had been drinking alcohol and estimated his level of intoxication as 4 out of a possible 10. He estimated Mr Boyd’s intoxication at a similar level. He and Mr Boyd decided to go from Kyogle to Nimbin but the person (who was known to them) whose car they initially got into, gave them a lift only a short distance and then dropped them off. They hitchhiked from there. The complainant’s four wheel drive pulled over and the appellant went to the front window and said words to the effect of, “Thanks mate, thanks for picking us up we’ve been waiting, you know, 15, 20 minutes. Any chance of getting a lift to Nimbin”. The complainant responded, “Yeah, not a problem. I’ve just got to stop at my uncle’s first”, but not until he and Mr Boyd had already got into the car. The appellant denied that there was any offer of drugs from Mr Boyd for the lift. He denied that he had a bag containing cannabis or a knife. He noticed the complainant “stuttered” as he was talking to his uncle and the appellant tapped him on the shoulder and said, “Are you right mate?”. After a short conversation, the complainant’s uncle shook both his and Mr Boyd’s hand and said, “Yeah, it’s fine to take ‘em”. He never heard any conversation from the uncle about a lookout or some alternative suggestion and never saw Mr Boyd interfere with the steering wheel as they were driving.

7. Mr Boyd did not give evidence, but his interview with the police was in evidence, although not admissible against the appellant. His version was different from the appellant’s in some details, but the effect of his version was also that the appellant and he hitched a lift in the car being driven by the complainant, which was, as far as he was concerned, offered voluntarily. Mr Boyd described saying to the complainant, “Can we get a ride to Nimbin?”, and the complainant responding, “Yeah, jump in”, but after they jumped in the complainant told them that he could only give them a lift as far as the Nimbin turnoff on Stoney Chute Road. However, after pulling in to speak with his uncle, he unexpectedly kept going past the Stoney Chute Road turnoff and drove them all the way to Nimbin. He ranked himself as “four to six” on an intoxication scale of zero to 10, even though he’d drunk “a carton” that day. Mr Boyd told the police, “I know that we said we’d give him a couple of dollars” for the ride, but denied offering drugs or seeing the appellant brandishing a bag with cannabis and/or a knife. He denied conducting any conversation with the complainant along the lines of, “Does your dad love you, would your dad kill for you?”. Mr Boyd’s version was that the appellant started talking to the complainant before the car passed the Nimbin turnoff, where the complainant had initially said he would drop them, and it was possible that the appellant said something threatening to the complainant but Mr Boyd was not sure. Mr Boyd said that the complainant, “looked and sounded, he was talkin’ a bit soft, like, you know, sort of frightened-ish way, sort of … But I never seen him cry …”.

8. The appellant’s uncle, CS, gave evidence of the car pulling up at his place with the complainant and two other people in it and the Aboriginal man in front (Mr Boyd) making various assertions about where the complainant was going to take them (including the Gold Coast and other destinations). CS said that the complainant would only take them “to the top of the hill” near where they were and that he would get his own Landcruiser, pick them up and take them where they wanted to go. After the three men drove off again he said he spoke with the complainant’s father and they went out looking for the complainant.

9. During the course of his closing address, the Crown Prosecutor made the following remarks:

“[The complainant] was deprived of his liberty. He was deprived of the right to go precisely where he wanted, for a fairly short period of time and that’s what the Crown says detaining means in that context. For the duration of that journey, the Crown says he was so scared of what might happen to him if he tried to go somewhere else, that he felt he had no opportunity, that he was under a compulsion or duress, psychological duress to take these men to Nimbin, which he didn’t want to do, but he was too fearful for what might happen, did he not do so.

It’s that that is the element of detaining in count 1 that the Crown says you have to consider. If you think it’s a reasonable possibility that these men hopped in the car and said could you take us to Nimbin and he said yes not a problem, but I’m just going to let my uncle know what I’m doing and he voluntarily drove them to Nimbin and dropped them off and quite happily drove back … the Crown would not have made out that element of detaining and your verdict on that count would be one of not guilty. But the Crown says that when you consider all the evidence, you would reject any concept of that being a reasonable possibility, for a number of reasons, and would conclude that the count is made out.”

10. However, counsel for the appellant in his address focused on what he described as “a very real middle ground”. As was put by the appellant in his submissions in this Court, the appellant’s counsel anticipated that the trial judge would make it clear that the jury would need to be satisfied that there had been a detaining and the detaining had been used to force someone to provide an advantage and that the person who was providing that advantage did so without his consent and that the detainers knew that there was no consent. It was submitted at the trial that although the jury might find the complainant was naïve and scared, nothing was said or done by the appellant to cause that fear.

The directions given by the trial judge

11. Following the closing address for the appellant, the Crown submitted the trial judge would need to touch on the question of recklessness being the same as knowledge in terms of lack of consent.

12. In that context, after stating that the jury needed to be satisfied beyond reasonable doubt that the accused knew the complainant did not consent to the detention and summarising the Crown’s argument that the accused must have known the complainant was not consenting, her Honour gave the following direction:

“The question of their knowledge as to consent is something that you need to consider very closely. The Crown here says that because they knew what the circumstances were – they knew the way they jumped in the car that one of them blocked the path of the car and then jumped in and without a word sat in the car without even asking first they knew that he was not consenting at that point. Furthermore if there was any doubt about their knowledge as to his lack of consent they knew soon afterwards when he said ‘I don’t want to take you.’ That is the evidence that the Crown relies on. ‘I don’t want to take you.’ You can only infer from that, unless they were deaf or something, that they must have known that he was not consenting.

It has been submitted in particular on behalf of Mr Castle that there might be some middle ground, that he might not have understood or appreciated what arose from the way in which they got into the car and that he might have, to some extent as I understood it, assumed that they were getting a lift by virtue of the fact that the car had slowed down and as hitchhikers do you get into the car, you get in to take a ride when it is offered to you.

There are other matters put in relation to that but I mentioned that at this stage in terms of a direction that I need to give you as to this question of how the Crown might prove knowledge of the lack of consent, that is the accused’s knowledge of [the complainant’s] lack of consent. As I said the Crown case essentially is, that going by the circumstances, what was said and how events took place, the accused, both of them, knew that [the complainant] was not consenting.

If you had some doubt about that you might also want to consider the question as to whether they were, at the very least, the Crown would say, reckless as to whether or not he was consenting. The Crown can prove their knowledge by asking you to consider whether they simply were reckless as to whether he was actually giving them consent. Recklessness can be proved in a couple of ways: It can either be, a person can be reckless where his state of mind was such that he simply failed to consider whether in this case [the complainant] was consenting at all and just went ahead with the act that amounts to the detention without consent. Even though the accused, and I talk of them both here, knew that there was a risk that he was not consenting and that would have been obvious to anyone with that accused person’s mental capacity if he had been bothered to think about it and turned his mind to it.

There is a second way in which the Crown might show that an accused was reckless as to this question of knowledge as to lack of consent and that is that the person realised there was a possibility in this case that [the complainant] was not consenting but went ahead anyway whether or not he was consenting.

So there are a number of ways in which, the Crown can prove that the accused knew he was not consenting, either that they just knew it because of the words he said quite clearly, ‘I don’t want to take you.’ – again this is premised on whether or not you accept his evidence – and the way in which they behaved. Or if you are not convinced of that beyond reasonable doubt you consider whether they were reckless as to whether he was consenting and if you find that they were reckless either because they failed to really think about whether he wanted to take them or not and just went ahead even though it was obvious that he mightn’t want to, they went ahead and forced him or got in the car and got him to drive them to Nimbin or whether they realised that he might not have consented but just went ahead regardless insisting that he drive them or take them to Nimbin in the circumstances.”

13. Her Honour returned to the question on the second day of her summing-up. She gave the following further direction:

“Now to move on, if you are not satisfied beyond reasonable doubt that each accused knew, as the Crown submits, that he was not consenting – directly knew because of the circumstances – there is another way in which the Crown is entitled to prove knowledge and that was simply that each accused were reckless as to whether or not [the complainant] was consenting.

The accused can be regarded as acting recklessly if the Crown can prove beyond reasonable doubt that each accused simply failed to consider whether or not [the complainant] was consenting and just went ahead and got in the car and asked for the lift in circumstances generally where they should have considered that [the complainant] might not be consenting. So again the Crown would have to show beyond reasonable doubt that each accused’s state of mind was such that he simply failed to consider whether or not [the complainant] was consenting at all and went ahead with the act of detaining even though the risk that he was not consenting would have been obvious to someone with each accused – considering them separately – their mental capacity if they had turned their mind to it or thought about it.

There is a second way in which recklessness can be proven by the Crown, that is if the Crown proves beyond reasonable doubt that each accused’s state of mind was such that each may have realised the possibility that [the complainant] was consenting but just went ahead regardless of whether or not he was consenting.”

14. No objection was taken to these directions and no request for further directions was sought.

The submissions

The appellant

15. The appellant submitted that in the directions given on the first day of the summing-up, her Honour described recklessness as a subset of knowledge in the sense that if recklessness is proved that amounted to proof of knowledge at law. He submitted the paragraph of her direction commencing “if you had some doubt about that …” contained an internal inconsistency in that it contemplated, first, that the accused simply failed to consider consent, but also that he knew there was a risk the complainant was not consenting. However, he submitted that any ambiguity was removed in the last paragraph of the direction referred to above at [12], when her Honour stated that one of the meanings of recklessness was that the accused failed to really think about whether the complainant wanted to take them or not and just went ahead even though it was obvious he might not want to.

16. The appellant submitted that the direction on the second day had the effect of telling the jury that the element of lack of consent may be proved if the appellant did not consider the matter one way or another and that in the judgment of the jury, the risk of lack of consent would have been obvious to anybody thinking about it.

17. The appellant accepted that there was no error in directing the jury that recklessness was sufficient to prove knowledge of the complainant’s lack of consent. However, he submitted that whatever the precise wording of the test, often phrased as foresight of the possibility that the consequence proscribed in the offence might occur but continuing to act regardless, is a wholly subjective test. It was submitted her Honour erred in directing the jury to the contrary.

18. Counsel for the appellant submitted that the cases relied on by the Crown, supporting what might be described as an objective test or “inadvertent recklessness”, were cases involving sexual intercourse without consent prosecuted pursuant to s 61R of the Crimes Act, which was repealed with effect from 2 January 2008. He submitted that in Banditt v The Queen [2005] HCA 80; 224 CLR 262 (Banditt), the majority of the High Court made it clear that recklessness must be considered by reference to the particular offence under consideration.

19. Counsel for the appellant submitted that the Crown’s submissions on the question of inadvertent recklessness were essentially based on what was said on the topic by Lord Diplock in R v Caldwell [1982] 1 AC 341 (Caldwell). He pointed out that the Crown disclaimed reliance on that decision in Banditt: at [30]. He also submitted that Caldwell was disapproved by the subsequent decision of the House of Lords in R v G [2003] UKHL 50; [2004] 1 AC 1034. He pointed to the fact that in that case the House of Lords rejected the submission that an appropriate direction would be that a defendant should be regarded as having acting recklessly by virtue of his failure to give any thought to an obvious risk that property would be destroyed or damaged, where such risk would have been obvious to the defendant had he given any thought to the matter.

20. Counsel for the appellant also submitted that to put cases which are concerned with consent or lack thereof into a special category involved a distinction between foresight of the consequences of an act and foresight of circumstances, a distinction rejected by the High Court in R v Crabbe [1985] HCA 22; 156 CLR 464 at 470.

21. Counsel for the appellant also submitted that the submission made by the Crown on this issue was inconsistent with what was said by Hodgson JA in R v DMC [2002] NSWCCA 513; 137 A Crim R 246 (DMC), a case involving the repealed s 90A of the Crimes Act, the predecessor to s 86(2)(a). He submitted the amendment to the provision did not change the relevant mental element.

The Crown

22. The Crown submitted that the test for recklessness requiring foresight of the possibility of the consequences as formulated in cases involving malice, was an inappropriate approach. It was submitted that offences such as kidnapping and sexual assault involving knowledge of consent of an alleged victim, are cases to which reckless non-advertence can apply. Reliance was placed in particular on the following statements in the judgment of Kirby P in R v Tolmie (1995) 37 NSWLR 660 (Tolmie) at 670-672, referring to his earlier judgment in R v Kitchener (1993) 29 NSWLR 696 (Kitchener) at 697:

“‘In addition to the plain meaning of s 61D(2) of the Crimes Act 1900 and the authority of this Court in R v Henning (Court of Criminal Appeal, 11 May 1990, unreported) there are sound reasons of policy which support the instruction given by the trial judge … to the jury on the meaning of what is ‘reckless’ which the appellant contests.

To criminalise conscious advertence to the possibility of non-consent, but to excuse the reckless failure to give a moment’s thought to that possibility, is self-evidently unacceptable. In the hierarchy of wrongdoing such total indifference to the consent of a person to have intercourse is plainly reckless, at least in our society today. Every individual has a right to the human dignity of his or her own person. Having sexual intercourse with another, without the consent of that other, amounts to an affront to that other’s human dignity and an invasion of the privacy of that person’s body and personality. It would be unacceptable to construe a provision such as s 61D(2) so as to put outside the ambit of what is ‘reckless’ a complete failure to advert to whether or not the subject of the proposed sexual intercourse consented to it or declined consent. Such a law would simply reaffirm the view that our criminal law, at crucial moments, fails to provide principled protection to the victims of unwanted sexual intercourse, most of whom are women. Our law is not unprincipled or inadequate in this regard.’

The debate as to the application of advertent or inadvertent tests in satisfying standards of recklessness is one that has arisen in other areas of the criminal law. The issue has been directly commented upon in a series of decisions of the House of Lords in R v Caldwell [1982] AC 341, R v Lawrence [1982] AC 510 and R v Reid [1992] 1 WLR 793. These decisions together have, as one commentator has noted, ‘amounted to a landmark in judicial thinking about the fault element in crime’: S Gardiner ‘ Recklessness Refined’ (1993) 109 LQR 21. By majority in R v Caldwell and unanimously in R v Lawrence and R v Reid, their Lordships rejected the contention that recklessness should always require perception of risk. Their Lordships held that in the criminal law generally ‘recklessness’ in its ordinary meaning connotes both advertent and inadvertent states of mind. Lord Diplock in R v Caldwell, said (at 353-354):

‘“… Reckless” as used in the new statutory definition of the mens rea of these offences is an ordinary English word. It had not by 1971 become a term of legal art with some more limited esoteric meaning than that which it bore in ordinary speech – a meaning which surely includes not only deciding to ignore a risk of harmful consequences resulting from one’s acts that one has recognised as existing, but also failing to give any thought to whether or not there is any such risk in circumstances where if any thought were given to the matter it would be obvious that there was.’

…

It follows from the decisions in this jurisdiction of R v Hemsley, R v Kitchener, R v Henning, and like decisions in other jurisdictions such as R v Reid, R v Caldwell and R v Lawrence in the House of Lords, that, where the accused has not considered the question of consent and a risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused’s mental capacity if they had turned their mind to it, the accused is to be taken to have satisfied the requisite mens rea referred to by the word ‘reckless’ in s 61R of the Crimes Act 1900. This would apply to situations where consent has been withdrawn during intercourse where the accused was not continuing with the honest belief that the victim was in fact consenting.”

23. The Crown submitted that this proposition extended beyond cases dealing with consent for the purpose of the repealed s 61R of the Crimes Act, to cases of indecent assault in respect of which absence of consent was not expressly stated to be an element of the offence: Fitzgerald v Kennard (1995) 38 NSWLR 184 (Fitzgerald); R v Mueller [2005] NSWCCA 47 (Mueller).

24. The Crown submitted that kidnapping, like cases involving sexual assault and indecent assault, is concerned with the accused’s state of mind, not as to the consequences of his conduct but rather as to a state of facts the existence of which renders his conduct criminal. It was submitted that with that background in mind there were sound policy reasons to support the directions by the trial judge in relation to non-advertent recklessness. It was submitted, echoing Kirby P in Kitchener, that to criminalise conscious advertence to an attack on an individual’s fundamental right to personal liberty whilst excusing reckless failure to give any thought to that possibility is self-evidently unacceptable.

25. Counsel for the Crown submitted that there was no logical reason why the principles in Tolmie should be restricted to cases involving sexual assault. He submitted that authorities concerning cases of malice are not helpful when dealing with the concept of recklessness when it comes to consent.

26. Counsel for the Crown also submitted that this was an extremely strong case and even if it was demonstrated that there was error in the direction, there was no miscarriage of justice.

Consideration

27. Section 86 of the Crimes Act is in the following terms:

“86   Kidnapping

(1)   Basic offence

A person who takes or detains a person, without the person’s consent:

(a)   with the intention of holding the person to ransom, or

(a1)   with the intention of committing a serious indictable offence, or

(b)   with the intention of obtaining any other advantage,

is liable to imprisonment for 14 years.

(2)   Aggravated offence

A person is guilty of an offence under this subsection if:

(a)   the person commits an offence under subsection (1) in the company of another person or persons, or

(b)   the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.

A person convicted of an offence under this subsection is liable to imprisonment for 20 years.

(3)   Specially aggravated offence

A person is guilty of an offence under this subsection if the person commits an offence under subsection (1):

(a)   in the company of another person or persons, and

(b)   at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.

A person convicted of an offence under this subsection is liable to imprisonment for 25 years.

(4)   Alternative verdicts

If on the trial of a person for an offence under subsection (2) or (3) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of a lesser offence under this section, it may find the accused not guilty of the offence charged but guilty of the lesser offence, and the accused is liable to punishment accordingly.

(5)   A person who takes or detains a child is to be treated as acting without the consent of the child.

(6)   A person who takes or detains a child does not commit an offence under this section if:

(a)   the person is the parent of the child or is acting with the consent of a parent of the child, and

(b)   the person is not acting in contravention of any order of a court relating to the child.

(7)   In this section:

child means a child under the age of 16 years.

detaining a person includes causing the person to remain where he or she is.

parent of a child means a person who has, in relation to the child, all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children.

taking a person includes causing the person to accompany a person and causing the person to be taken.”

28. The section was introduced into the Act in 2001 following the repeal of s 90A of the Crimes Act. That section provided as follows:

“90A   Kidnapping

Whosoever leads takes or entices away or detains a person with intent to hold him or her for ransom or for any other advantage to any person shall be liable to imprisonment for twenty years or, if it is proved to the satisfaction of the judge that the person so led taken enticed away or detained was thereafter liberated without having sustained any substantial injury, to imprisonment for fourteen years.

This section does not apply to any person who shall, in good faith, have claimed a right to the possession of a person so led, taken or enticed away or detained.”

29. It should be noted that s 86(1)(a1) was inserted into the section on 24 September 2012.

30. The former s 90A, unlike its successor, did not include the words “without the person’s consent”. Nevertheless and unsurprisingly, it was held that a necessary element of the offence under that section was that the complainant did not consent and that the accused was aware of the lack of consent. The requisite elements of the offence were summarised by Hodgson JA in DMC in the following terms at [41]-[42]:

“[41]   Insofar as the charge was that the appellant ‘detained’ the complainant, that included the requirement that the complainant was not willing or did not consent to be with the appellant and that the appellant did not believe that she was willing or consenting. Though this issue was not clearly expressed by the appellant, I think the appellant’s evidence and submissions did raise the issue to the effect that he did no more than instruct the complainant to come: there was evidence from the complainant to the effect that her compliance was unwilling and through fear, but if the matter had been squarely left to the jury they may not have been satisfied of this beyond reasonable doubt. Furthermore, they may not have been satisfied beyond reasonable doubt that the appellant did not believe that the complainant came and remained with him willingly, perhaps out of respect rather than out of fear.

[42]   Similarly, in relation to intention to hold, I agree with the Crown Prosecutor that this implies an intention to hold the victim irrespective of whether the victim is willing or consents to remain with the accused. Although the element of intention to hold was put to the jury on at least three occasions, it was never squarely put to the jury in terms of their having to be satisfied beyond reasonable doubt that the appellant’s intention was to hold the complainant irrespective of whether she was willing to be with him or not. This problem is exacerbated by the fact that the question of intention was twice put to the jury as being whether the appellant intended to gain an advantage, and not in terms of whether the appellant intended to hold the complainant for advantage.”

31. It does not seem to me that in these circumstances the addition of the words “without the person’s consent” added anything to the elements of the offence. There is nothing in the Act or in the Second Reading Speech to suggest that it was intended to do so.

32. As is apparent from the passages from the judgment of Hodgson JA cited above, the element of knowledge of lack of consent can be satisfied by recklessness. Neither party suggested to the contrary.

33. The question of what constitutes recklessness for the purpose of the offence will depend on the construction of the provision creating the particular offence in question. That was made clear in Banditt at [8]. Although that was a case involving an offence where the statute expressly provided that an element of the offence was that the accused knew that the complainant did not consent to sexual intercourse (the then s 61R of the Crimes Act), this would apply equally to an offence where knowledge of lack of consent is a necessary element irrespective of whether it is expressly referred to in the statute creating the offence.

34. The offence in question in the present case, like that under consideration in Banditt, concerns recklessness as to the mental state of another as distinct from the physical consequences of the act in question. It was in that context that the Crown suggested the appropriate direction in respect of recklessness for the purpose of the section was that suggested in Tolmie.

35. Tolmie at least on one view suggested the appropriate test was wholly objective. In the passages from the judgment in that case to which I referred above at [22], the President applied the speech of Lord Diplock in Caldwell to the effect that recklessness involves not only ignorance of the risk of harmful consequences arising from the accused’s acts that are recognised as existing, but also failure to give any thought to whether there was such a risk where, if thought was given, it would be obvious that the risk existed.

36. Tolmie was a case involving sexual intercourse without consent contrary to the then s 61A of the Crimes Act. Section 61R(1) provided that a person who was reckless as to whether the other person consented to sexual intercourse is to be taken to know the other person did not consent. Further, the earlier decisions relied on by Kirby P, R v Henning (Court of Criminal Appeal (NSW), 11 May 1990, unrep) (Henning), R v Hemsley (1988) 36 A Crim R 334 (Hemsley) and Kitchener, contained similar provisions concerning recklessness.

37. It is correct, as the Crown pointed out, that the concept of inadvertent recklessness has been extended beyond the particular offences referred to in the cases above. In Fitzgerald, Cole JA at least was prepared to extend the concept of inadvertent recklessness to cases of indecent assault in contravention of the then s 61L of the Crimes Act. By contrast, Kirby ACJ who was in dissent, pointed to the fact that the equivalent provision to s 61R(1) referred to by him in Tolmie did not apply to an offence under s 61L. In those circumstances he concluded the Crown had to prove either that the accused knew the victim was not consenting or, knowing that the victim might not be consenting, decided to go ahead. However, in Mueller, Studdert J with whom Hunt AJA and R S Hulme J agreed, stated that the principles established in cases such as Tolmie should be extended to include cases of indecent assault: at [57]-[58].

38. The question arises whether the principle in those cases should be extended to kidnapping offences such that the necessary element of knowledge of lack of consent can be demonstrated by proving the accused did not turn his mind to the question in circumstances where lack of consent would be obvious if the accused had considered it.

39. In my mind the answer to this question is no. As was pointed out in Peter Gillies, Criminal Law (4th ed 1997, LBC Information Services) at 583-584, the approach effectively dispenses with the common law presumption of the requirement of mens rea. It seems to me that such a principle would only be displaced by clear words or necessary implication in the statute. No such clear words or necessary implication exists in respect of s 86. As was pointed out in David Brown et al, Criminal Laws (5th ed 2011, The Federation Press) at 4.4.6, an objective standard should be spelt out with clarity in the legislation and not “smuggled in by the courts through an interpretation of the word ‘reckless’ which is quite at variance with the meaning that it is ordinarily understood to have in a criminal law context.”

40. There are a number of other reasons why, in my view, the approach should not be adopted.

41. First, the earlier decisions of this Court relied upon in Tolmie do not provide unqualified support for the approach. In Henning, the appellant was convicted on one count of sexual assault and one count of kidnapping contrary to s 90A of the Crimes Act. Whilst it is correct that in the context of the sexual assault charge the Court (Gleeson CJ, Campbell and Mathews JJ) stated that a failure to advert at all to the possibility of non-consent, in other words treating it as an entirely irrelevant factor, will almost certainly amount to either knowledge or recklessness if consent was in fact withheld, they also stated that in the context of the particular case it was a theoretical discussion. Importantly, the Court also stated that different principles applied to the kidnapping charge.

42. Hemsley, with respect, does not support the objective approach. In that case, Yeldham J, with whom the other members of the court agreed, after pointing out, at 337, that the malice involved in murder and the knowledge of lack of consent involved in rape or an offence under the then s 61D of the Crimes Act were different things, cited the following passage from the decision of the Full Court of the Supreme Court of Victoria in R v Daly [1968] VR 257 (Daly) at 258-259:

“Furthermore this involves, it appears to us, that the Crown must establish beyond reasonable doubt that the accused either was aware that the woman was not consenting or else realised she might not be and determined to have intercourse with her whether she was consenting or not.”

43. Further, Caldwell was disapproved in R v G at [28]-[41], [58]-[59], [70]. In that case Lord Bingham made the following remarks at [32]:

“[32]   First, it is a salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable. This, after all, is the meaning of the familiar rule actus non facit reum nisi mens sit rea. The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if (for reasons other than self-induced intoxication: R v Majewski [1977] AC 443) one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.”

44. It is correct that the House of Lords did not overrule R v Lawrence [1982] AC 510 and the case which followed it, R v Reid [1992] 1 WLR 793, however, in the former case, as Lord Bingham pointed out in R v G at 1052, Lord Diplock added a rider to his appropriate jury directions in Caldwell to the following effect:

“It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves. If satisfied that an obvious and serious risk was created by the manner of the defendant’s driving, the jury are entitled to infer that he was in one or other of the states of mind required to constitute the offence and will probably do so; but regard must be given to any explanation he gives as to his state of mind which may displace the inference.”

45. As the appellant pointed out, the Crown in Banditt disclaimed reliance on the dictum of Lord Diplock in Caldwell. However, the plurality in Banditt at [3] cited with approval the following extract from the dissenting speech of Lord Edmund-Davies in Caldwell at 358:

“So if a defendant says of a particular risk, ‘It never crossed my mind,’ a jury could not on those words alone properly convict him of recklessness simply because they considered that the risk ought to have crossed his mind, though his words might well lead to a finding of negligence. But a defendant’s admission that he ‘closed his mind’ to a particular risk could prove fatal, for, ‘A person cannot, in any intelligible meaning of the words, close his mind to a risk unless he first realises that there is a risk; and if he realises that there is a risk, that is the end of the matter’.”

The plurality also cited with approval, at [25], the passage from Daly to which I have referred above at [42]. Further, the plurality referred to the decision of the House of Lords in R v Morgan [1976] AC 182 (Morgan), emphasising that although it may be possible to construe the term reckless against an objective criterion, there was a need in the case before them to accommodate the term to the requisite mental element: at [33]. This approach, in a case which involved an alleged contravention of s 61I, is inconsistent with Tolmie.

46. Further, the approach in Tolmie is inconsistent with what was said by Hodgson JA in DMC in the passage which I have cited above at [30].

47. In the circumstances, the objective approach to recklessness suggested in Tolmie is not in my respectful opinion sufficient to establish knowledge of lack of consent for the purpose of an offence under s 86 of the Crimes Act.

48. However, it remains important in considering what would constitute recklessness for the purpose of the section that, like Banditt, the question involves recklessness as to another’s state of mind as distinct from foresight of the consequences of a particular act. Further, although the offence does not necessarily involve an assault, it does involve infringement of personal liberty. In these circumstances, it seems to me that recklessness as to lack of consent can be established in a manner similar to that explained in Banditt for the purpose of the then s 61R.

49. In Banditt the plurality made the following remarks in relation to Morgan:

“[27]   In Morgan, the House of Lords used various expressions when describing the requisite mental element of the offence. Lord Cross of Chelsea said that to his mind rape imported ‘at least indifference as to the woman's consent’. Lord Hailsham of St Marylebone identified the mental element of the offence as an intention to commit the act or ‘the equivalent intention of having intercourse willy-nilly not caring whether the victim consents or no’. His Lordship also said that an intention to have intercourse ‘recklessly and not caring whether the victim be a consenting party or not’ was ‘equivalent on ordinary principles to an intent to do the prohibited act without the consent of the victim’. Lord Edmund-Davies also said that the man would have the necessary mens rea:

‘if he set about having intercourse either against the woman's will or recklessly, without caring whether or not she was a consenting party’.”

They also cited the following comments of Professor Sir John Smith on the United Kingdom equivalent to s 61R at [35]:

“If D is aware that there is any possibility that P is not consenting and proceeds to have intercourse, he does so recklessly. Lord Hailsham in Morgan required an 'intention of having intercourse, willy-nilly, not caring whether the victim consents or [no]'. Another way of putting it is to ask, 'Was D's attitude one of “I could not care less whether she is consenting or not, I am going to have intercourse with her regardless.”’ What, however, of the man who knows that the woman may not be consenting but hopes, desperately, that she is? He could care much less; but is he not reckless?”

50. The plurality concluded, at [38], that one or more of the expressions used in Morgan and by Professor Smith may be used in explaining the concept of recklessness for the purpose of s 61R(1). Those expressions seem to me also to be appropriate to explain what was required to establish recklessness for the purpose of establishing knowledge of lack of consent in a case involving a contravention of s 86.

51. I have set out the directions complained of above. They must be considered in the context of the evidence as it emerged at the trial. On the complainant’s evidence it seems quite clear that he did not consent: see above at [3]-[5]. By contrast the appellant’s case was in effect that he asked for a lift and the complainant agreed. Mr Boyd stated in his police interview that the complainant consented: see above at [7]. In these circumstances, it is difficult to see why any direction as to recklessness was necessary.

52. On the first day of her summing-up, although the trial judge stated that a person can be reckless because he failed to consider whether the complainant consented and simply went ahead, she immediately elaborated on this saying “Even though the accused, and I talk of them both here, knew there was a risk he was not consenting and that would have been obvious to anyone”. The second way the jury were told they could reach a finding of recklessness was that the appellant knew there was a possibility the person was not consenting and went ahead anyway.

53. Her Honour summarised the two possibilities in the last paragraph of her direction which I have set out above at [12]. She stated recklessness could be established if the accused failed to really think about whether the complainant wanted to take them or not and just went ahead even though it was obvious that he might not want to, or they just went ahead regardless realising that he might not have consented.

54. These directions taken as a whole, would not in my opinion lead a jury to take the view that it would be sufficient to convict the appellant simply if they concluded he failed to give any consideration to whether or not consent was given. In the context where it formed no part of the appellant’s case, his evidence being that the complainant said he would take them to Nimbin, the direction in my opinion at its highest would be taken by the jury as either that recklessness could be proved if it was established that the applicant went ahead even though he was aware of the risk of lack of consent, or went ahead with indifference to consent or not caring whether the complainant consented or not. Viewed in this way there was no error in the direction.

55. The direction on the second day creates more difficulty. The second way the issue was put on that day is in accord with what I consider to be the correct approach. However, the first way it was put was that the appellant failed to advert to the risk which would have been obvious had he thought about it. This seems to me to be similar to what was suggested in Caldwell and Tolmie and wrongly imports an objective test.

56. However, the direction must be considered as a whole and I do not think this statement taken in conjunction with the other directions given to the jury and the evidence before them, would have caused them to convict on the basis that the appellant simply failed to advert to an objectively obvious risk. As I have indicated that was no part of the appellant’s case, it being in effect that the complainant stated he was willing to offer them a lift. In these circumstances, where there was no error in the other direction given by the trial judge on that day, what was said would not in my view have deprived the appellant of the possibility of an acquittal which was otherwise open.

57. The evidence to which I referred in the above paragraph included the following:

• The complainant, when asked if he would drive the appellant and Boyd to Nimbin, said “No, I just live up the hill, I can’t go that far”.

• When the complainant stopped the vehicle to speak to his uncle he was, as the trial judge said, exhibiting distress at that time, i.e., he was visibly crying.

• After he left his uncle and drove on, when he went to pull the vehicle into a turnoff in the area of the lookout near his home, Boyd “yanked the steering wheel to the other side of the road”. The complainant said he corrected the vehicle and then kept driving. At about that time his evidence was that he said: “I just wanna go home”. He kept driving after that.

58. In those circumstances, there was no miscarriage of justice.

59. In the result, the appeal should be dismissed.

60. HALL J: I have had the advantage of reading the judgments of the Chief Justice and of R A Hulme J. Whilst R A Hulme J agrees with the conclusion of the Chief Justice that the appeal should be dismissed, his Honour departs from the Chief Justice’s reasoning as to the primary issue concerning the concept of recklessness as to the consent of the complainant in respect of the offence charged under s 86 of the Crimes Act 1900. In this judgment, I state my reasons as to why I agree with the Chief Justice on the primary issue.

61. That issue concerns the concept of recklessness that is capable of satisfying the element of knowledge of lack of consent in relation to an offence of kidnapping under s 86(1) of the Crimes Act 1900.

62. The issue raises the question as to whether the necessary element of knowledge of lack of consent can be demonstrated by proving the accused did not turn his mind to the question in circumstances where lack of consent would be obvious if the accused had considered it.

63. I commence with a short statement of the following fundamental propositions:

1. The charge that the appellant “detained” the complainant included a requirement that the complainant was not willing and did not consent to driving him and the appellant did not believe that he was willing or consenting;

1. The element of knowledge of lack of consent under s 86(1) can be satisfied by recklessness: R v DMC (2002) 137 A Crim R 246;

2. Recklessness in that context is recklessness in an accused person charged with such an offence as to the state of mind of another (the complainant) not recklessness as to the consequences of the acts in question;

3. In general terms, criminal culpability for a serious criminal offence depends upon proof of the requisite state of mind. The most obviously culpable state of mind in a case such as the present is an intention to commit the act (in this case, the detaining of the complainant). However, in addition, a knowing disregard of an appreciated risk that the person was not consenting to being detained is also a basis upon which criminal liability for an offence under s 86(1) may be established;

4. It is not the reaction of some notional reasonable man but the state of mind of the accused (the appellant) which the jury was obliged to consider and this was to be undertaken with regard to the surrounding circumstances: Banditt v R (2005) 224 CLR 262 at [37]. Recklessness, in relation to an offence under s 86(1) is to be taken as meaning subjective recklessness.

64. The Crown in its submissions relied upon authorities that have considered the concept of recklessness as applied to sexual assault cases and other cases in which that concept has been applied to other offences. The Crown noted that s 61R of the Crimes Act 1900 (repealed on 1 January 2008) provided that for the purpose of ss 61I, 61J and 61JA, a person who had sexual intercourse with another person without the consent of the other person, and who was reckless as to whether the other person consented to the sexual intercourse, was to be taken to know that the other person does not consent to the sexual intercourse: at [23].

65. The Crown submitted at [24] that recklessness in s 61R(1) encompassed both advertent and non-advertent recklessness. Reliance for that proposition was placed upon the decisions in R v Henning (NSWCCA, 11 May 1990, unreported) (in relation to s 61D(2), the predecessor to s 61R); R v Kitchener (1993) 29 NSWLR 696, and R v Tolmie (1995) 37 NSWLR 660, which involved offences of sexual intercourse without consent.

66. The Crown contended at [33]:

“Although the abovementioned decisions were all concerned with offences of sexual intercourse without consent, the concept of non-advertent recklessness as to consent by an alleged victim has also been found to extend beyond the statutory concept of recklessness in s 61R(1) to the common law.”

67. Reference in that respect was made to the decision in Fitzgerald v Kennard (1995) 38 NSWLR 184 (indecent assault charge) in which it was held that at common law the necessary intention for indecent assault extended to non‑advertent recklessness.

68. In that case, Sheller JA concluded (at 195) that:

“…Recklessness is demonstrated by an indifference whether the party is a consenting party or not. In this case the respondent said that ‘It didn’t enter my mind’ whether the victim may not have wanted him to touch her.”

69. The Crown, on this point, also made reference to a policy consideration in its written submissions:

“It is submitted that to criminalise the conscious advertence to an attack on an individual’s fundamental right to personal liberty whilst excusing the reckless failure of an accused to give any thought to that possibility is as ‘self evidently unacceptable’ in the case of kidnapping as it is in sexual and indecent assaults.” (at [45])

Discussion

70. The question as to whether the principle as to recklessness referred to in the cases relied upon by the Crown should be extended to kidnapping offences is, in my opinion, one to be considered having the general importance that the criminal law attaches to the mental element for criminal culpability well in mind. This is especially so where culpability involves the concept of recklessness as to the mental state of another person.

71. The adoption of a wide definition of recklessness that covers culpable inadvertence is one that has attracted a good deal of attention and a degree of concern as noted by Lord Bingham of Cornhill in R v G [2004] 1 AC 1034. In particular, his Lordship referred at [34] to past criticism of the earlier decision of the House of Lords in R v Caldwell [1982] AC 341, in particular as expressed by academics, judges and others.

72. In R v Tolmie, Kirby P drew upon a number of case law authorities. These included the decisions of the Court of Criminal Appeal in: R v Hemsley (1988) 36 A Crim R 334, R v Henning and R v Kitchener.

73. The President in R v Tolmie also considered a number of English authorities including the decision of the House of Lords in R v Caldwell. However, since then, the House of Lords in R v G, supra, has re-examined the meaning of “recklessness” in s 1 of the Criminal Damage Act 1971 (“the 1971 Act”) and determined that it was necessary that the House overrule its decision in R v Caldwell.

74. It is necessary at this point to refer to certain matters concerning R v G. At trial the jury was directed, inter alia, that the prosecution had to prove:

“…that when he, meaning the defendant, did what he did, either he had not given any thought to the possibility of there being such a risk, or having recognised that there was some risk involved in doing what he did, nonetheless went on and did the act …”

75. The enactment of the 1971 Act in that case, as Lord Bingham noted at [12] had been preceded by a programme of law reform with respect to a number of specific offences, among them the law of malicious damage.

76. In a Working Paper produced by the Law Commission, in a section on “the Mental Element”, the Commission stated in [31]:

“For the present purpose, we assume that the traditional elements of intention, knowledge and recklessness (in the sense of foresight and disregard of consequences or awareness and disregard of the likelihood of the existence of circumstances) will continue to be required for serious crime.”

77. The subsequent Report of the Law Commission broadly followed, in relevant respects, the lines of the Working Paper.

78. In [44], the Commission, in part, stated:

“In the area of serious crime (in contrast to offences commonly described as ‘regulatory offences’ in which the test of culpability may be negligence, or even a test founded on strict liability) the elements of intention, knowledge or recklessness have always been required as a basis of liability. The tendency is to extend this basis to a wider range of offences and to limit the area of offences where a lesser mental element is required. We consider, therefore, that the same elements as are required at present should be retained, but that they should be expressed with greater simplicity and clarity. In particular, we prefer to avoid the use of such a word as ‘maliciously’, if only because it gives the impression that the mental element differs from that which is imposed in other offences requiring traditional mens rea. It is evident from such cases as R v Cunningham and R v Mowatt that the word can give rise to difficulties of interpretation. Furthermore, the word ‘maliciously’ conveys the impression that some ill-will is required against the person whose property is damaged. …”

79. Lord Bingham stated that in R v G the task before the House was one of statutory construction – What did the Parliament mean when it used the word “reckless” in s 1(1) and (2) of the 1971 Act? He was not, as his Lordship stated, addressing the meaning of “reckless” in any other statutory or common law text.

80. Lord Bingham set out four reasons for his conclusion at [32]‑[35]. The first, as set out at [32], invoked fundamental principle:

“First, it is a salutary principle that convictions of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable. This, after all, is the meaning of the familiar rule actus non facit reum nist mens sit rea. The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if … one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.”

81. In the second of four reasons given by Lord Bingham, it was made clear that application of the “model direction” formulated by Lord Diplock in R v Caldwell resulted in unfairness because it seemed clear that the jury did not conclude “that boys of the appellant’s age would have appreciated the risk …”. The “model direction” accordingly, meant that they had been convicted without a culpable state of mind having been established in accordance with the correct (narrower) concept of “reckless” (that is, one based upon advertent recklessness).

82. The third reason related to the criticism by academics, judges and practitioners of R v Caldwell.

83. The fourth reason related to the misinterpretation of s 1 of the 1971 Act. However, it is to be observed that this was not merely an error in “misinterpretation”. It was one that led to significant consequences. Lord Bingham stated, at [35]:

“… But the misinterpretation is offensive to principle and is apt to cause injustice. That being so, the need to correct the misinterpretation is compelling.”

84. The amendments made to the 1971 Act did not alter the test of recklessness to be applied. As Lord Rodger in R v G observed, at [68], in R v Stephenson [1979] QB 695, Geoffrey Lane LJ recognised that in his view the test of recklessness under the 1971 Act remained subjective and that the knowledge or appreciation of risk of some damage must have entered the defendant’s mind. Lord Rodger also observed that what Lord Diplock did in R v Caldwell was “to adopt a wider definition of recklessness that covered culpable inadvertence. In so doing, as the House now holds, he misconstrued the terms of the 1971 Act.”

85. Whilst the overruling of R v Caldwell in R v G did depend upon a “misinterpretation”, it was, as discussed below, the consequence of the misinterpretation – an incorrect statement of principle as to the concept of “recklessness” by Lord Diplock in R v Caldwell – that was also fundamental to the analysis in R v G. Lord Diplock had considered (wrongly) that the word “reckless” in s 1 of the 1971 Act was not as narrow as the accepted meaning of “maliciously” under the former s 51 of the Malicious Damage Act 1861.

86. Lord Diplock’s reasoning had been based on an erroneous assumption based upon the purpose of the 1971 Act which was “to revise the law”. On that basis Lord Diplock assumed that it was possible to attribute to Parliament a remedial intent, namely, to change the mental element of the offence by including cases of inadvertent wrongdoing. This “misinterpretation” was stated to have been “offensive to principle and is apt to cause injustice”: Lord Bingham in R v G at [35]. Lord Steyn observed in that case “The accepted meaning of recklessness involved foresight of consequences”: at [54].

87. The decision in R v G represented a rejection by the House of Lords of its earlier decision in R v Caldwell. A consequence of the “misinterpretation” identified in R v Caldwell was the model direction formulated by Lord Diplock which was said to have been “…capable of leading to obvious unfairness”: per Lord Bingham at [33].

88. The plurality in Banditt referred to R v G in the discussion of criminal offences created by statute with a criterion of recklessness or reckless indifference: at [6]‑[8]. Following the quote from Lord Bingham’s speech in R v G (set out at [7] in Banditt), reference was made by the plurality, inter alia, to the general importance of the mental element for criminal culpability: at [8]. Reference was also made in that paragraph to the fact that R v G concerned recklessness as to physical consequences of the acts in question rather than recklessness as to the mental state of another.

89. In Banditt, the plurality noted the fact that the House of Lords in R v G held that foresight of consequences was an essential ingredient of recklessness in s 1(1) of the 1971 Act and that a formulation which made no allowance for a defendant’s youth or lack of mental capacity when assessing obviousness of the risk of damage to property was erroneous.

90. At [7], it was also noted that in his speech in R v G, Lord Bingham rejected the proposition that the construction of s 1(1) of the 1971 Act which held that foresight of consequences was an essential ingredient would lead to the acquittal of those whom public policy would require to be convicted, and quoted the following passage from his Lordship’s speech:

“There is no reason to doubt the common sense which tribunals of fact bring to their task. In a contested case based on intention, the defendant rarely admits intending the injurious result in question, but the tribunal of fact will readily infer such an intention, in a proper case, from all the circumstances and probabilities and evidence of what the defendant did and said at the time. Similarly with recklessness: it is not to be supposed that the tribunal of fact will accept a defendant’s assertion that he never thought of a certain risk when all the circumstances and probabilities and evidence of what he did and said at the time show that he did or must have done.”

91. The plurality in Banditt itself expressed a similar view at [8].

92. Further, in what was clearly a reference to the test that had been enunciated in R v Cunningham [1957] 2 QB 396, later displaced in R v Caldwell, Lord Bingham in R v G observed at [39]:

“I cannot accept that the restoration of the law as understood before R v Caldwell [1982] AC 341 would lead to the acquittal of those whom public policy would require to be convicted. There is nothing to suggest that this was seen as a problem before R v Caldwell …”

93. The decisions in R v G and Banditt were both concerned with issues of statutory construction (s 1(1) in the 1971 Act in the former, and ss 61I and 61R(1) of the Crimes Act 1900 in the latter). The House of Lords in R v G and the High Court in Banditt each considered the concept of “reckless” as a criterion of legal liability in the criminal law. The decision of the House of Lords in R v G can be seen as a strong endorsement of mens rea standards for serious criminal charges including in particular, those involving the concept of recklessness. Nothing said by the High Court in Banditt in any way departs from that position.

94. The High Court in Banditt was concerned with a limited issue as to a claimed misdirection in law as to the operation of ss 61I and 61R(1) – that there should have been an additional direction that the appellant had to be “indifferent about the risk or determined to have sexual intercourse whether consent was present or not.” Following upon a discussion of Lord Bingham’s speech in R v G, the plurality at [8] in Banditt expressed a similar view to that stated by his Lordship and as extracted in [90] above and did so in the following terms:

“8.   …The foregoing demonstrates the general importance attached to the mental element for criminal culpability, but also the law’s scepticism in accepting later assertions as to the existence or absence of a mental state which are at odds with practical experience of life …”

Conclusions

95. Where in a case such as the present the offence concerns recklessness as to the mental state of another person, the state of mind of an accused is all-important on the issue of criminal culpability.

96. The definition of “reckless” or “recklessness” in such cases, should accord with the principle that conviction for a serious criminal offence depends on proving the state of mind of the accused person to be culpable.

97. The adoption of a wider definition of recklessness, one that includes culpable inadvertence, would change and diminish the mental element of the offence in s 86(1) of the Crimes Act 1900. No warrant or basis for such a wider definition has, in my opinion, been established. The advertent sense of recklessness as to lack of consent (as where the accused person realised there was a possibility that the complainant was not consenting but went ahead anyway whether or not he was consenting) is the proper test. It is, for reasons discussed in [90]‑[94] above, also one unlikely to lead to an acquittal of those whom public policy would require to be convicted.

98. Insofar as the trial directions included directions based upon inadvertent recklessness, I am of the opinion that the directions were wrong in law. The trial directions framed in terms of the concept of advertent recklessness, however, correctly identified the mental element of the offence charged.

99. The evidence, including in particular the evidence referred to by the Chief Justice at [57], in my opinion strongly established an awareness or appreciation in the appellant that the complainant was not willing to drive him and his companion (that is, that he was not consenting), or at the very least that he was aware of the possibility that he was not consenting.

100. I accordingly agree that there was no miscarriage of justice and that the appeal should be dismissed.

101. R A HULME J: I am in agreement with the conclusion of the Chief Justice that the appeal should be dismissed. I depart from his Honour's reasoning as to the primary issue concerning the concept of recklessness as to the consent of the complainant in an offence of detaining for advantage. In my respectful view, it is as applicable to offences against s 86 of the Crimes Act 1900 (NSW) as it is accepted to be applicable in sexual assault cases.

102. However, even if there be error in the trial judge's directions to the jury, I agree with Bathurst CJ that there was no miscarriage of justice and that the appeal should be dismissed.

No issue about the relevance of recklessness

103. It should be acknowledged from the outset that there is no controversy that the Crown must not only prove that the complainant did not consent to the detaining but also that the accused knew that he or she was not consenting. There is also no controversy that knowledge of the lack of consent may be established by proof to the requisite standard that the accused was reckless as to whether there was consent. The appellant, however, contended that in an offence of detaining for advantage, the recklessness must be what is sometimes referred to as advertent and not inadvertent. The appellant contends that the trial judge was in error in directing the jury that it could take either form.

The impugned directions

104. The directions of the trial judge have been earlier set out in full (at [12]-[13]). On my reading of them, I see her Honour as having clearly directed the jury as to both advertent and inadvertent recklessness on both days of her summing up (cf Bathurst CJ at [52]-[55]). To make good that point I need to set out the directions again. The underlined passages comprise directions as to inadvertent recklessness and the italicised passages are directions as to advertent recklessness.

105. On the first day of the summing up her Honour said:

"There are other matters put in relation to that but I mentioned that at this stage in terms of a direction that I need to give you as to this question of how the Crown might prove knowledge of the lack of consent, that is the accused’s knowledge of [the complainant's] lack of consent. As I said the Crown case essentially is, that going by the circumstances, what was said and how events took place, the accused, both of them, knew that [the complainant] was not consenting.

If you had some doubt about that you might also want to consider the question as to whether they were, at the very least, the Crown would say, reckless as to whether or not he was consenting. The Crown can prove their knowledge by asking you to consider whether they simply were reckless as to whether he was actually giving them consent. Recklessness can be proved in a couple of ways: It can either be, a person can be reckless where his state of mind was such that he simply failed to consider whether in this case [the complainant] was consenting at all and just went ahead with the act that amounts to the detention without consent. Even though the accused, and I talk of them both here, knew that there was a risk that he was not consenting and that would have been obvious to anyone with that accused person’s mental capacity if he had bothered to think about it and turned his mind to it.

There is a second way in which the Crown might show that an accused was reckless as to this question of knowledge as to lack of consent and that is that the person realised there was a possibility in this case that [the complainant] was not consenting but went ahead anyway whether or not he was consenting.

So there are a number of ways in which, the Crown can prove that the accused knew he was not consenting, either that they just knew it because of the words he said quite clearly, “I don’t want to take you.” - again this is premised on whether or not you accept his evidence - and the way in which they behaved. Or if you are not convinced of that beyond reasonable doubt you consider whether they were reckless as to whether he was consenting and if you find that they were reckless either because they failed to really think about whether he wanted to take them or not and just went ahead even though it was obvious that he mightn’t want to, they went ahead and forced him or got in the car and got him to drive them to Nimbin or whether they realised that he might not have consented but just went ahead regardless insisting that he drive them or take them to Nimbin in the circumstances." (SU 21-23 on 28.2.14)

106. It can be seen that in the second paragraph of this passage the judge included a sentence relevant to advertent recklessness in the middle of her description of inadvertent recklessness. Nothing turns on this as the distinction between the two concepts was made clear in the succeeding paragraphs.

107. On the second day, her Honour said:

"Now to move on, if you are not satisfied beyond reasonable doubt that each accused knew, as the Crown submits, that he was not consenting - directly knew because of the circumstances - there is another way in which the Crown is entitled to prove knowledge and that was simply that each accused were reckless as to whether or not [the complainant] was consenting.

The accused can be regarded as acting recklessly if the Crown can prove beyond reasonable doubt that each accused simply failed to consider whether or not [the complainant] was consenting and just went ahead and got in the car and asked for the lift in circumstances generally where they should have considered that [the complainant] might not be consenting. So again the Crown would have to show beyond reasonable doubt that each accused’s state of mind was such that he simply failed to consider whether or not [the complainant] was consenting at all and went ahead with the act of detaining even though the risk that he was not consenting would have been obvious to someone with each accused - considering them separately - their mental capacity if they had turned their mind to it or thought about it.

There is a second way in which recklessness can be proven by the Crown, that is if the Crown proves beyond reasonable doubt that each accused’s state of mind was such that each may have realised the possibility that [the complainant] was consenting but just went ahead regardless of whether or not he was consenting."

The directions were consistent with those given in sexual cases

108. The directions were consistent with what was said by Kirby P in the sexual assault case of R v Tolmie (1995) 37 NSWLR 660 at 672D:

"It follows from the decisions in this jurisdiction of Hemsley, Kitchener, Henning, and like decisions in other jurisdictions such as Reid, Caldwell and Lawrence in the House of Lords, that, where the accused has not considered the question of consent and a risk that the complainant was not consenting to sexual intercourse would have been obvious to someone with the accused's mental capacity if they had turned their mind to it, the accused is to be taken to have satisfied the requisite mens rea referred to by the word "reckless" in s 61R of the Crimes Act. This would apply to situations where consent has been withdrawn during intercourse where the accused was not continuing with the honest belief that the victim was in fact consenting."

109. As counsel for the applicant observed, the directions were in conformity with the direction for recklessness as to consent in sexual assault cases suggested in the Criminal Trials Bench Book published by the Judicial Commission of New South Wales (at [5-1550] and [5-1566]).

110. Directions in similar terms in sexual cases have been commonly given: see: R v Mitton [2002] NSWCCA 124; 132 A Crim R 123; R v Porteus [2003] NSWCCA 18; R v Mueller [2005] NSWCCA 47; 62 NSWLR 476; Jackson v R [2005] NSWCCA 411; South v R [2007] NSWCCA 117; DJB v R; R v DJB [2007] NSWCCA 209; R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2010] NSWCCA 228; AM v R [2011] NSWCCA 237; and O'Sullivan v R; Flanders v R; Tohu v R & NRH v R [2012] NSWCCA 45; 233 A Crim R 449.

111. In only one of these cases was a question raised as to the correctness of the direction. That was in R v Mueller where the complaint was rejected by Studdert J (Hunt AJA and Hulme J agreeing) by reference to R v Henning Court of Criminal Appeal (NSW), 11 May 1990, unrep); R v Kitchener (1993) 29 NSWLR 696; R v Tolmie; and Fitzgerald v Kennard (1995) 38 NSWLR 184.

112. The directions given in the present case were also consistent with those parts of the directions given in Banditt v The Queen [2005] HCA 80; 224 CLR 262 (also involving a sexual assault) that were not challenged (or the subject of any adverse comment). The directions appear in the judgment of the plurality (at [14]) and they included:

"So if you just go ahead and do it willy-nilly, not even considering whether the person is consenting or not, you are reckless and the law says you are deemed to know that the person is not consenting."

"Now, recklessness is a [failure] to advert to … the question of whether the person is consenting or not. It does not have to be the product of conscious thought. If the offender does not even consider whether the woman is going to consent or not then that is reckless and he is deemed to know that she is not consenting."

Inadvertent recklessness in an offence detaining for advantage

113. Bathurst CJ has concluded (at [38]-[39]) that the principle in cases such as R v Tolmie (the R v Tolmie principle) should not be "extended to kidnapping offences such that the necessary element of knowledge of lack of consent can be demonstrated by proving the accused did not turn his mind to the question in circumstances where lack of consent would be obvious if the accused had considered it".

114. The reasoning of the Chief Justice (at [39]-[46]) appears to turn on a characterisation of the R v Tolmie principle as importing an objective standard. His Honour's concern has been raised in respect of the direction given by the trial judge on the second day of the summing up in which she referred to a failure to advert to a risk "which would have been obvious had [the appellant] thought about it". (I have earlier indicated that I read her Honour as having said as much on the first day as well.) At [55] of the judgment his Honour says that this seems "similar to what was suggested in Caldwell and Tolmie and wrongly imports an objective test".

115. It is in this respect that I cannot agree with Bathurst CJ. I do not see the trial judge's direction as importing an objective test. An example of a direction as to recklessness (erroneously) importing an objective standard in a sexual assault case is R v O'Meagher (1997) 101 A Crim R 196 where the trial judge directed that recklessness could be made out if "it must have been apparent that at least there was a risk that she was not consenting". It was observed in Banditt v The Queen (at [37]) that the trial judge in that case had properly emphasised that "it was not the reaction of some notional reasonable man but the state of mind of the appellant which the jury was obliged to consider".

116. Peter Gillies, Criminal Law (4th ed 1997, LBC Information Services) at 583-584 which is cited by Bathurst CJ (at [39]) involves the author's disagreement with what this Court held in R v Kitchener, R v Tolmie and Fitzgerald v Kennard. David Brown et al, Criminal Laws (5th ed 2011, The Federation Press) which is also referred to also involves the authors' disagreement with such cases. However, I do not understand the Chief Justice to question what this Court has previously held; his Honour's judgment simply refrains from extending application of the R v Tolmie principle to an offence against s 86 of the Crimes Act.

117. In Mitton v R, Bell J (Beazley JA, as her Honour then was, and Smart AJ agreeing) implicitly accepted that the R v Tolmie principle was well-settled:

"[28] The term 'reckless' for the purposes of s 61R(1) of the Act is not defined. The content of the concept was not in issue on the hearing of this appeal. Mr Button acknowledged that the law has been settled in this respect for some years. Recklessness for the purposes of s 61R(1) may be both advertent and non-advertent. In the former case it may be established by proof that the accused adverted to the possibility that the complainant was not consenting and with that awareness proceeded to have intercourse in any event; Regina v Hemsley (1988) 36 A Crim R 334. Recklessness may also be established in a case where the accused does not turn his mind to the question of consent at all in circumstances in which the risk that the complainant is not consenting is one which would have been obvious to a person of the accused’s mental capacity had he turned his mind to it: Regina v Kitchener (1993) 29 NSWLR 696; Regina v Tolmie (1995) 37 NSWLR 660."

118. With respect to both Bathurst CJ and the authors of the textbooks, I do not consider that a direction in terms of the R v Tolmie principle involves an objective test. It involves a subjective standard (the accused was heedless or indifferent or did not turn his or her mind to whether the complainant was consenting) with an objective rider (the risk would have been obvious if the accused did turn his or her mind to the question). The rider is important and provides a safeguard in favour of an accused if the facts be such that even if the question of consent had been considered it would not, or might not, have been apparent anyway.

119. The objective rider referred to in R v Tolmie appears to have been drawn from R v Caldwell [1982] AC 341. Counsel did not refer to, nor can I find, any case in this Court before or since R v Tolmie which has given specific consideration to it as a discrete component of the concept of inadvertent recklessness.

120. R v Caldwell concerned (in part) construction of s 1 of the Criminal Damage Act 1971 (UK). It provided for an offence of intentional or reckless destruction or damage to property (s 1(1)) and an aggravated form of such an offence (s 1(2)) where there is an intention or recklessness as to whether the life of another would be endangered. Lord Diplock observed that under the repealed Malicious Damage Act 1861 (UK) such offences were described as being committed "maliciously". His Lordship referred to authority (R v Cunningham [1957] 2 QB 396, approving what was said by Professor Kenny in Outlines of Criminal Law 1902) to the effect that this required an actual intention to do the particular kind of harm that in fact was done or recklessness in the sense of there being foresight that the particular kind of harm might be done but that the accused had proceeded to take the risk.

121. Lord Diplock was of the view that the earlier authority had no bearing on the meaning of the adjective "reckless" in s 1 of the Criminal Damage Act. He thought that in revising the law in 1971, Parliament would not have perpetuated the "fine and impracticable distinctions" under the previous law where advertent recklessness was blameworthy whilst a person who "did not even trouble to give his mind to the question whether there was any risk of damaging the property" was held to be blameless.

122. After discussing some of the earlier cases which considered the 1971 Act, his Lordship continued (at 353-354):

"'Reckless' as used in the new statutory definition of the mens rea of these offences is an ordinary English word. It had not by 1971 become a term of legal art with some more limited esoteric meaning than that which it bore in ordinary speech—a meaning which surely includes not only deciding to ignore a risk of harmful consequences resulting from one's acts that one has recognised as existing, but also failing to give any thought to whether or not there is any such risk in circumstances where, if any thought were given to the matter, it would be obvious that there was.

If one is attaching labels, the latter state of mind is neither more nor less 'subjective' than the first. But the label solves nothing. It is a statement of the obvious; mens rea is, by definition, a state of mind of the accused himself at the time he did the physical act that constitutes the actus reus of the offence; it cannot be the mental state of some non-existent, hypothetical person.

Nevertheless, to decide whether someone has been 'reckless' as to whether harmful consequences of a particular kind will result from his act, as distinguished from his actually intending such harmful consequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. If there were nothing in the circumstances that ought to have drawn the attention of an ordinary prudent individual to the possibility of that kind of harmful consequence, the accused would not be described as 'reckless' in the natural meaning of that word for failing to address his mind to the possibility; nor, if the risk of the harmful consequences was so slight that the ordinary prudent individual upon due consideration of the risk would not be deterred from treating it as negligible, could the accused be described as 'reckless'" in its ordinary sense if, having considered the risk, he decided to ignore it. (In this connection the gravity of the possible harmful consequences would be an important factor. To endanger life must be one of the most grave.) So to this extent, even if one ascribes to 'reckless' only the restricted meaning, adopted by the Court of Appeal in Stephenson and Briggs, of foreseeing that a particular kind of harm might happen and yet going on to take the risk of it, it involves a test that would be described in part as 'objective' in current legal jargon. Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective.

In my opinion, a person charged with an offence under section 1(1) of the Criminal Damage Act 1971 is 'reckless as to whether or not any property' would be destroyed or damaged' if (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it. That would be a proper direction to the jury; cases in the Court of Appeal which held otherwise should be regarded as overruled."

123. True it is, as Bathurst CJ and the authors of the textbooks mentioned above have pointed out, R v Caldwell was overruled by R v G [2003] UKHL 50; [2004] 1 AC 1034. Precisely how it did so is important to note. Lord Bingham reviewed (at [22]-[26]) six cases which followed R v Caldwell. Four of the cases involved offences of reckless damage to property. Two of them – R v Lawrence [1982] AC 510 and R v Reid [1992] 1 WLR 793 – involved the offence of reckless driving causing death.

124. His Lordship then turned to consider the question of the correct construction of s 1(1) and (2) of the Criminal Damage Act. He explicitly confined himself to that task (at [28]):

"In so expressing the question I mean to make it as plain as I can that I am not addressing the meaning of 'reckless' in any other statutory or common law context."

125. Lord Bingham immediately added quite specifically that he did not wish to throw any doubt upon the decisions in R v Lawrence and R v Reid.

126. In determining that R v Caldwell should not be followed, Lord Bingham gave four reasons (at [32]-[35]). First, there was the "salutary principle" referred to in paragraph 32 (quoted in the judgment of Bathurst CJ at [43]). Secondly, the model direction formulated by Lord Diplock was capable of leading to unfairness. Thirdly, criticism of R v Caldwell by academics, judges and practitioners should not be ignored. Fourthly, the majority's interpretation of "recklessly" in s 1 of the Criminal Damage Act was a misinterpretation. As to the last point, his Lordship had earlier demonstrated that Parliament's enactment of the Criminal Damage Act 1971 and repeal of the Malicious Damage Act 1861, whilst replacing the concept of "maliciously" with "wilful or reckless" had not involved any intention to alter the mens rea component. "Maliciously" had long been held to require proof of intention or foresight of the possibility of harm but proceeding regardless.

127. It can be seen from the foregoing that the overturning by R v G of R v Caldwell was not complete and unqualified. And to the extent that it did overturn R v Caldwell, it depended in part on a misconstruction of the legislation to which attention was confined.

128. Returning to R v Tolmie, Kirby P made reference to R v Caldwell, R v Lawrence and R v Reid but it is evident that his conclusion was not dependent upon them. Before his discussion of those cases he referred (at 670) to his earlier judgment in R v Kitchener in which he had said:

"To criminalise conscious advertence to the possibility of non-consent, but to excuse the reckless failure to give a moment's thought to that possibility, is self-evidently unacceptable. In the hierarchy of wrongdoing such total indifference to the consent of a person to have intercourse is plainly reckless, at least in our society today. Every individual has a right to the human dignity of his or her own person. Having sexual intercourse with another, without the consent of that other, amounts to an affront to that other's human dignity and an invasion of the privacy of that person's body and personality. It would be unacceptable to construe a provision such as s 61D(2) so as to put outside the ambit of what is ‘reckless’ a complete failure to advert to whether or not the subject of the proposed sexual intercourse consented to it or declined consent. Such a law would simply reaffirm the view that our criminal law, at crucial moments, fails to provide principled protection to the victims of unwanted sexual intercourse, most of whom are women. Our law is not unprincipled or inadequate in this regard.

Nor is the construction of s 61D(2) preferred by me inconsistent with the basic rule that the Crown must prove beyond reasonable doubt the requisite intent on the part of the accused. The Crown does so relevantly showing that the accused is ‘reckless’ as to whether the other person consents to the sexual intercourse. This can be shown not only when the accused adverts to the possibility of consent but ignores it, but also where the accused is so bent on gratification and indifferent to the rights of the victim as to ignore completely the requirement of consent."

129. I see no basis in reason or logic to distinguish between cases involving sexual assault and those involving kidnapping (detaining for advantage). They are both offences against the person of considerable seriousness. (The maximum penalties are identical; 14 years imprisonment for the basic offence and 20 years in the aggravated form.) Both involve as essential elements that the complainant did not consent with the mens rea for each being that the accused knew that there was no consent.

130. As I observed earlier, it is uncontroversial that knowledge of the lack of consent of the complainant in this case could be made out by proof of recklessness. In my view, it is, to adopt the words of Kirby P in R v Kitchener, just as "self-evidently unacceptable" to "criminalise conscious advertence to the possibility of non-consent, but to excuse the reckless failure to give a moment's thought to that possibility" for offences against s 86 of the Crimes Act as it is for sexual assault offences.

Agreement with the Chief Justice

131. Even if the trial judge's directions in this case were wrong in the manner in which the appellant sought to portray them, I respectfully agree with Bathurst CJ that there was no miscarriage of justice.

132. The first essential element of the offence was that the complainant was detained. Drawing from the review by the trial judge in her summing up, the Crown relied upon the following matters to establish that there was a detention:

"[T]he Crown case, in order to prove the detention, in short is that the complainant … was detained in his father's car and forced to drive the two accused to Nimbin when he said that he did not want to – that it was done against his wishes." (AB 21)

There was no direct threat; the Crown case was that "there was an implied threat that started from the point at which the two accused got in to the car in the manner that [the complainant] said they got in to the car". (AB 22)

The complainant's evidence was that the accused Boyd blocked the path of his car and the two men got into the car without a word being said; without asking if they could get into the car. (AB 22)

The two men were strangers and it was around dusk and on an isolated country road. (AB 22)

The complainant was asked to drive the men to Nimbin. He responded, "I can't take you". (AB 25)

"This request was made in the way of what seems to be a rather pleasant request. There was no threat of force of anything of that kind, there was no waving of a weapon at that stage." But the Crown contended that this should not be looked at in isolation. (AB 25)

The complainant's response ("I can't take you") was ignored and the men remained in the car. (AB 26)

The complainant was shown (by the applicant) a bag of what he concluded could be cannabis as well as a knife. His uncle later saw these items in the car in the applicant's possession. (AB 26)

The complainant said that he was told by Boyd not to stop and speak to his uncle. (AB 27)

The two men were told by the uncle that the complainant was not going to drive them to Nimbin. He offered to drive them there himself. (AB 27)

Boyd pulled the steering wheel when the complainant went to turn into the lookout where his uncle had told the men they would be dropped off. (AB 27)

Boyd said, what the Crown argued amounted to an implied threat, "Would your father kill for you?" (AB 27)

Not mentioned by the trial judge in this context but also potentially relevant was the evidence of the complainant that when he spoke to his uncle he was visibly crying. His uncle confirmed this, describing the complainant as "extremely upset"; "I could hear him actually sobbing in the car and he was … rather distressed". (AB 245.16; 367.41; 368.42)

133. The "middle ground" that counsel for the applicant suggested in his closing address to the jury went as much to the question of whether the complainant was detained as to whether the applicant knew (or was reckless) as to whether he was not consenting. Towards the end of his address (AB 541-2) he described as being at the centre of the case the question "Was there a deliberate attempt to detain and did people know that he wasn't consenting?"

134. It is hard to conceive how, if the jury were satisfied that the complainant was detained (as they must have been), they could not also be satisfied that the appellant had actual knowledge that he was not consenting. In the unlikely prospect of the jury having a doubt about the latter, whilst having no doubt about the former, their recourse to recklessness would inevitably have led to the conclusion that the appellant was aware of at least a possibility that the complainant was not consenting. The simple reality is, whatever view one might form about inadvertent recklessness, this was not a case in which it was a practical issue.

135. I agree that the appeal should be dismissed.

**********

Amendments

29 September 2016 - par [58]-[60] change to bullet points under par [57]

03 August 2016 - par [29] change "86(a1)" to "86(1)(a1)"

par [35] change "ignorance of harmful consequences" to "ignorance of the risk of harmful consequences"

par [41] change "possibility of consent" to "possibility of non-consent"

par [45] change [41] to [42]

par [45] change "criteria" to "criterion"

Decision last updated: 29 September 2016